The entitlement to a review of the lawfulness of a prisoner's detention under Art.5(4) European Convention on Human Rights 1950 was not dependant on the merits of the case, or whether that prisoner was in open or closed custody. As the prisoner's last review was completed in January 2000, the decision not to complete his next review until December 2003 constituted a delay under Art.5(4).Application for judicial review of whether events which had led to a review of the lawfulness of the claimant's detention, put back from June 2002 to December 2003, constituted delay under Art.5(4)European Convention on Human Rights 1950. The claimant ('K') was serving a life sentence imposed in July 1981 with a 15 year tariff period which expired in January 1996. He was transferred to open prison in 2000 and it was envisaged that his next review would take place in June 2002. In 2001 K failed two mandatory drugs tests and was returned to closed prison where he was notified that his parole board review would take place in December 2002. K was later told that his review would be set for June 2003. In September 2002 K requested that the December 2002 review date be restored, but was refused. On 27 March 2003 the lifer unit wrote to K explaining that his removal from open conditions in September 2001 effectively cancelled the review scheduled to begin in June 2002 and that a period of 18 months was required before a review, which was set for December 2003. It was also said that, in view of the fact that K was a tariff expired prisoner and therefore affected by the judgment in Dennis Stafford v United Kingdom (2002) 35 EHRR 32, the review process would start in July 2003 and be concluded by December 2003. K submitted that the delay in the determination of whether he should remain in custody was sufficient to breach Art.5(4) and that he would not have had a Convention compliant review for over 3 years after the Human Rights Act 1998 came into force, and for 19 months after the decision in Stafford (supra). The defendant Home Secretary submitted that: (i) the application of Art.5(4) to those serving mandatory life sentences was not clear until the decision in Stafford (supra); (ii) the Home Secretary was entitled to a reasonable period to make the system Convention compatible after that; (iii) since the reasons for the lapse of time in assessing K's continued detention primarily arose from K's conduct since his last review, and the parole board needed a sustained period of assessment to make a suitable determination, there had not been sufficient delay to infringe Art.5(4); and (iv) the delay was not excessive because the review would be completed within 12 months.HELD: (1) Even if it was correct to take the commencement of the transitional arrangements as the relevant point, the conclusion that the delay was not excessive did not follow. In deciding what should be done in an individual case where a review was outstanding because of the decision in Stafford, account had to be taken of when a prisoner's last review was. To take account of the fact that in the instant case there had been no review since January 2000 in deciding whether, in the post-Stafford era a review to be completed in December 2003 constituted an excessive delay, did not involve giving Stafford an inappropriate retrospective effect. (2) While allowing a period so as to furnish the parole board with more information had practical advantages for both the lifer unit and the parole board, it did not address or give weight to the right of a prisoner to have the lawfulness of his continued detention reviewed. On that argument a prisoner in closed conditions who had not progressed to open conditions would never be entitled to a review of the legality of his detention. That could not be the case. (3) The entitlement to a review under Art.5(4) was not dependant on the merits of the case, or whether a prisoner was in open or closed custody. (4) In view of the fact that K's last review was completed in January 2000, the decision not to complete his next review until December 2003 constituted a breach of Art.5(4). (5) Although in principle K was prima facie entitled to damages under Art.5(5), taking into consideration K's recent conduct which led to his return to closed custody, it was very unlikely that there had been any loss, or that any annoyance suffered would suffice to justify an award of damages.Application allowed.

[2003] EWHC 2831 (Admin)